Legal Commentary

Notwithstanding Dan's gentle invitation to depart, I'm going to stick around a little in order to share the stage with the great bunch who are just coming aboard.  For instance, here's a question for Carissa and any other crimpro types who might have ideas. 

The Second Circuit this week affirmed the dismissal of the indictment against most of the defendants in the KPMG tax shelter/alleged tax fraud prosecution.  (The case is, as best I know, the first ever to level tax fraud charges against partners at major, highly reputable law and accounting firms).  To give you a sense of the profile of the case, Seth Waxman was counsel in one of almost a dozen amicus briefs -- this is the just the court of appeals, mind you.  (Disclosure note: I once worked in the office that will be signing off  on the memo to the SG regarding whether to seek cert. in this case, but I never worked on it and don't have any insider knowledge).   

The basis for dismissal was that the Government had demanded that KPMG, as a condition of the entity's non-prosecution agreement, refuse to pay for counsel for its indicted partners.  The district court thought this was a violation of the Sixth Amendment right to counsel, and the Second Circuit agreed.  The logic, as best I can follow it, is that while there is no right to a government subsidy to pay for one's counsel of choice, there is a right to be free of unreasonable government interference with choice of counsel within one's means. 

So, the question for you, crimpro mavens: Why is this case an example of interference with choice of counsel, rather than an instance just of diminishing the funds available to the defendant?  That is, how is this case different than a government demand to an individual defendant that the defendant first pay his outstanding back taxes, even unto the brink of bankruptcy, before it will enter into a plea agreement?  Is it just that the government's interest is a little more diffuse?  But is the balancing of the government's interest against the individual's even triggered by mere diminutions of resources?  These aren't rhetorical questions; I really don't know.  Anyone?